Fun Spree Vacations, Inc. v. Orion Ins. Co.
| Decision Date | 09 August 1995 |
| Docket Number | No. 94-393,94-393 |
| Parties | 20 Fla. L. Weekly D1793 FUN SPREE VACATIONS, INC., Appellant, v. The ORION INSURANCE COMPANY, Holidays International, Inc., Bliss Holidays International, Inc., and Bliss Van Den Heuvel, Appellees. |
| Court | Florida District Court of Appeals |
Joe N. Unger; Kaplan & Freedman, for appellant.
Stearns Weaver Miller Weissler Alhadeff & Sitterson and Bradford Swing; Buckner & Shifrin and Robin Buckner, for appellees.
Before BARKDULL, GERSTEN and GREEN, JJ.
Fun Spree Vacations, Inc. ("Fun Spree") appeals a final summary judgment determining that The Orion Insurance Company ("Orion") had no duty to defend or indemnify its insured, Holidays International, Inc. ("Holiday"), Bliss Holidays International, Inc. ("Bliss Holidays") and Bliss Van Den Heuvel, defendants in a negligence and breach of contract action brought by Fun Spree. We affirm.
Fun Spree was in the business of selling to the general public memberships in a discount travel club. Fun Spree purchased certificates for discount vacation packages from Holiday and Bliss Holidays and distributed them free of charge to potential customers as part of its marketing and sales program.
Orion insured Holiday and Bliss Holidays under a Special Multi-Peril liability policy covering various aspects of their travel business. 1 Included in the policy was coverage for all sums that Holiday and Bliss Holidays became legally obligated to pay because of various "offenses committed in the conduct of the named insureds' business", including "the publication or utterance of a libel or slander or of other defamatory or disparaging material." The Orion policy was issued and became effective on January 17, 1987.
Fun Spree filed its initial complaint in this action against Holiday, Bliss Holidays and their principal, Heuvel, individually, after its customers could not obtain the promised vacation packages. The factual allegations in the complaint alleged that the defendants promised travel benefits and amenities and either knowingly or negligently misrepresented their intention or ability to provide the services and that they permitted others to deny Fun Spree access to the promised accommodations. 2 Fun Spree alleged that as a result of the negligent or intentional misrepresentations by defendants it lost its reputation, credit and recognition in the travel industry and that its business was destroyed by the defendants' actions. There was no allegation in the complaint about the defendants making defamatory or disparaging comments about Fun Spree to third parties. Further amendments to the complaint filed by Fun Spree also failed to make the allegations necessary to state a cause of action for defamation. 3
Orion undertook a defense of Holiday, Bliss Holidays and Heuvel under a reservation of rights. At the same time, Orion sought to intervene in the action, seeking a declaratory judgment that it had no duty to defend and that its policy provided no coverage for the claims asserted in the third amended complaint.
Fun Spree and the defendants then entered into a stipulation for the entry of consent judgment. The consent judgment provided for Fun Spree to recover from the defendants a sum of $1,000,000, plus interest. Orion filed its second amended complaint for intervention and sought an additional declaratory judgment that it had neither a duty to pay any portion of the consent judgment nor a duty to indemnify any of the defendants if they paid the judgment. All parties filed motions for summary judgment on the question of whether Orion had a duty to defend. The trial court ruled in favor of Orion.
After examining the allegations of the third amended complaint against the insureds, as well as the allegations in the second amended complaint in intervention, we find that Orion had no duty to defend nor to indemnify the defendants.
The basic law controlling this appeal is well settled. An insurance carrier's duty to defend a claim depends solely upon the allegations in the complaint National Union Fire Ins. v. Lenox Liquors, Inc., 358 So.2d 533 (Fla.1977); State Farm Fire & Casualty Co. v. Compupay, Inc., 654 So.2d 944 (Fla. 3d DCA 1995); Psychiatric Assoc. v. St. Paul Fire & Marine Ins. Co., 647 So.2d 134 (Fla. 1st DCA 1994); Grissom v. Commercial Union Ins. Co., 610 So.2d 1299 (Fla. 1st DCA 1992), rev. denied, 621 So.2d 1065 (Fla.1993). Posigian v. American Reliance Ins. Co., 549 So.2d 751 (Fla. 3d DCA 1989). It is equally well settled that the duty to defend is broader than, and distinct from, the duty to indemnify. Psychiatric Assoc., 647 So.2d at 137; Irvine v. Prudential Property and Casualty Ins....
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